R (A) v Director of Establishments of the Security Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS : |
| Judgment Date | 04 July 2008 |
| Neutral Citation | [2008] EWHC 1512 (Admin) |
| Docket Number | Case No: CO/10069/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 July 2008 |
[2008] EWHC 1512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/10069/2007
Mr Keir Starmer, Q.C. & Mr Guy Vassall-Adams (instructed by Bindman & Partners) for the Claimant
Mr Philip Havers Q.C. & Mr Jason Coppel (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 15 June 2008
The cryptic title to this claim conceals the reality. The claimant is a former member of the Security Service who has written and wishes to publish a book which contains inter alia a description of his work for the Service. The defendant is the Director of Establishments of the Service. The claimant is bound by a duty of confidentiality that he cannot publish material relating to the Security Service or his experiences in it without the consent of the defendant. His application to publish has been refused. This claim seeks to overturn that refusal on the grounds that it was unreasonable, vitiated by bias and contrary to Article 10 of the ECHR (freedom of expression).
The defendant in his defence asserted that the court had no jurisdiction to deal with the claim, at least so far as the allegation of breach of Article 10 was concerned. It is said that the relevant provisions of the Regulation of Investigatory Powers Act 2000 ( RIPA) and the Human Rights Act 1998 require that matters such as this claim raises should be dealt with by the Investigatory Powers Tribunal (IPT) which was set up by RIPA. In those circumstances, it seemed sensible to deal with this jurisdictional argument as a preliminary issue and I so ordered on 12 March 2008.
The defendant's contention is based on s.65 of RIPA. This provides so far as material:-
“(1) There shall for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
(2) The jurisdiction of the Tribunal shall be –
(a) to be the only appropriate tribunal for the purposes of Section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4) … are complaints for which the Tribunal is the appropriate forum; …
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provisions made by the Secretary of State by order.
(3) Proceedings fall within this subsection if –
(a) they are proceedings against any of the intelligence services;
(b) they are proceedings against any other person in respect of any conduct or proposed conduct by or on behalf of any of those services;
(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes –
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) … to have been carried out by or on behalf of any of the intelligence services.
(5) … conduct falls within this subsection if (wherever it occurred) it is –
(a) conduct by or on behalf of any of the intelligence services.”
Section 66(1) provides:-
“An order under section 65(2)(d) allocating proceedings to the Tribunal –
(a) may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but
(b)if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.”
Any order is subject to an affirmative resolution of each House of Parliament.
The President of the IPT must be a person who holds or has held a high judicial office (Schedule 3 Paragraph 2). Other members must have had in England and Wales, Scotland or Northern Ireland a relevant legal qualification for at least 10 years. At present, the President of the IPT is Mummery LJ and the vice-president is Burton J.
Section 67 of RIPA contains provisions which establish how the IPT should exercise their jurisdiction. In proceedings under s.65(2)(a), they must 'apply the same principles for making their determination … as would be applied by a court on an application for judicial review' (s.67(2)). In dealing with complaints under s.65(2)(b), they must investigate whether the persons against whom the allegations are made have engaged in conduct falling within s.65(5) and what authority they had for such conduct and determine the complaints in the same manner as set out in s.67( 2) (s.67(3)). Section 67(7) gives power to award compensation. S.67(8) provides:-
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
This ouster provision is only applicable to proceedings pursuant to s.65(2)(a) and (b) (s.67(9).
There is the usual rule making power conferred by the Act (s.69). Pursuant to the power, the Investigatory Powers Tribunal Rules 2000 (2000 No.2665) have been made. The Tribunal must ensure that no information which is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services is disclosed to anyone, including any complainant. (Rule 6(1)). There is no obligation to hold an oral hearing (Rule 9(2)). Any such hearing must be held in private (Rule 9(6)) and no person can be compelled to give evidence (Rule 11(3)).
In addition to the restrictions in the Rules, s.68(4) of the Act provides:-
“Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of s.69(2)(i)) shall be confined, as the case may be, to either –
(a) a statement that they have made a determination in his favour; or
(b) a statement that no determination has been made in his favour.”
Rule 13(2) of the Rules requires the Tribunal, if they make a determination in favour of the complainant, to provide him with a summary of that determination including any findings of fact. But if the complainant loses, he does not know why and he has no right of appeal.
Section 7 of the Human Rights Act 1998 provides so far as material:-
“(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. because it is incompatible with a human right] may –
(a) Bring proceedings against the authority under this act in the appropriate court or tribunal; or
(b) Rely on the Convention right or rights concerned in any legal proceedings
But only if he is (or would be) a victim of the unlawful act.
(2) In subsection 1(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules, and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.”
The defendant appeared to be suggesting in his summary defence that the court's jurisdiction was ousted only in respect of the Article 10 claim. This would give rise to the anomalous situation in which the court had jurisdiction in relation to the grounds relied on other than a breach of Article 10. In their skeleton argument, the defendant's counsel submitted that those grounds could properly and should be heard by the IPT either as a component part of the s.7(1)(a) proceedings or because they fall within the scope of s.65(2)(b). In his submissions, Mr Havers, recognising the anomaly, submitted that all the conduct which was the subject of the claim fell within either s.65(2)(a) or s.65(2)(b) in that it was conduct on behalf of one of the intelligence services (s.65(5)(a) which had taken place in relation to the claimant (s.64(4)). Thus the appropriate forum in accordance with s.65(2) was the Tribunal and the fact that the wording of s.65(2)(b) was less prescriptive than that in s.65(2)(a) did not mean that there was any difference in their effect on the jurisdiction of the court. It was obviously unsatisfactory that there should be concurrent jurisdiction in relation to some grounds which were inextricably linked to another in respect of which the tribunal was the only appropriate forum.
There is no doubt that the language of s.65 is wide enough to encompass any conduct by or on behalf of any of the intelligence services which adversely affects any individual, whether an ordinary member of the public or a serving or ex-member of an intelligence service. As the IPT themselves have recognised, their main purpose is to ensure that the relevant investigatory powers conferred by RIPA are used lawfully and compatibly with Convention rights: see Paragraph 24 of...
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